The rise of fashion industry influencers has been accompanied by a significant spike in federal truth in advertising law violations, particularly from the industry’s most followed influencers and brands. As we told you earlier this year, fashion’s most successful personal style bloggers and major fashion and cosmetics brands, alike, are at the center of a truly massive deceptive marketing scheme that has the effect of misleading consumers.

An array of recent studies has shown that consumers, particularly millennial ones, do not respond most heavily when they know something is an ad. In theory, they are much more likely to engage with a brand or blogger/influencer and purchase something promoted by said blogger/influencer if they think the endorsement is authentic, and not because the individual was paid to endorse it. As such, it is a very common tactic for bloggers to either disclose in a way that is not obvious or fail to disclose material connections altogether for this exact purpose – both of which amount to willful violations of the FTC Act.

The following list takes into account 19 of the industry’s most celebrated influencers – from the biggest names, such as Chiara Ferragni and Julie Sariñana, to somewhat lesser-followed but still very noteworthy ones, like Marianna Hewitt and Gala Gonzalez, as well as the brands with which they are associated.

Far from merely providing a look at the bloggers that are and are not abiding by federal advertising laws, such as the Federal Trade Commission (“FTC”) Act, this ranking should serve as a wake up calls for brands, which the FTC holds accountable for such advertising failures, in terms of how well they are – or more likely, are not – doing to abide by federal law.

The FTC’s Disclosure Guides

The FTC has released a number of lengthy guides – including its “DotCom Disclosures” and Endorsement Guide – which serve to detail how to properly disclose sponsored posts; note: “sponsored” does not only refer to explicitly paid-for posts but also includes other forms of compensation, such as free garments and accessories, free travel accommodations, and other perks.

A few of the relevant takeaways from such guides are as follows: Disclosures are required when the posting party (such as a blogger/influencer) has been compensated to post about and/or endorse a specific product or service, and that would otherwise not be obvious (Note: the FTC has explicitly stated that it is “not common knowledge” that bloggers are paid to post).

In terms of brand ambassadors or collaborators, posts resulting from such partnerships must be disclosed if the posting party has “a financial connection to the company that hired you and that relationship exists whether or not you are being paid for a particular tweet.” In short: brand ambassadors or partners are not exempt from FTC disclosure rules and as a result, need to alert their followers about the sponsored-nature of their posts.

As for the disclosures themselves, they must be “clear and conspicuous” disclosures. This means that the posting parties “should use clear and unambiguous language and make the disclosure stand out. Consumers should be able to notice the disclosure easily. They should not have to look for it.”

While the FTC has held that there is no set language that posting parties must use, its guidelines and directors, alike, have set forth a number of additional lifelines in terms of what will and will not be deemed “clear and conspicuous,” and thus, effective. “#Ad,” “Sponsored” and “Promoted” will undeniably suffice as long as they are not hidden in a given post, but so will clear statements that the posting party has been compensated to promote a product or brand.

As Bloomberg properly noted earlier this year, “The FTC thinks #ad is okay if it's at the beginning of a post, but #sp and #spon aren't.” Mary K. Engle, the associate director for the FTC’s Ad Practices Division, echoed this, stating: “Simply saying ‘thank you’ to a brand or adding ‘#sp’ or ‘#spon’ probably isn’t clear enough.” Engle has also held that “collab” and “collaboration” are not clear enough. Yet, a “partner” disclosure may be in line with the FTC's guidelines, as Engle stated that "saying a brand is a 'partner' probably is" valid. This would depend entirely on whether or not "a significant minority" of consumers understand that such posts are sponsored.

In addition to the words themselves, the placement of such disclosures is crucial. “If you have a number of other hashtags at the end of a tweet and it’s mixed up with all these other things, it’s easy for consumers to skip over that,” according to Michael Ostheimer, a deputy in the FTC’s Ad Practices Division.

Moreover, a single disclosure alerting followers of a relationship will not suffice in connection with additional posts that arise from that same relationship. According to the FTC, “Disclosures should be repeated … in connection with repeated claims,” particularly if there is a chance that the previous disclosure has not been read.

The Terms of the Rankings

The following rankings are predicated most centrally upon the number of Instagram posts each individual has published over the three-month period at issue (July 1 to December 1, 2016) and how many of those posts were the result of a material connection between the posting party and an advertiser but were disclosed as such. This percentage ranking method was also utilized for the brands listed.

Not taken into account in calculating the following rankings were undisclosed product “gifts” (products gifted to the influencers largely for the purpose of placement on their highly-watched social media channels, namely Instagram), such as the personalized Louis Vuitton x Marc Newson suitcases that Chiara Ferragni, Aimee Song, Kristina Bazan and co. have been displaying on their Instagram accounts for months or the any of the various garments that were gifted during this time period.

Instead, the rankings focus more squarely on the presence of outright sponsorships that have not been disclosed; this takes the form of paid-for (or otherwise compensated) posts. One example: The rampant sponsorship of events and getaways by American Express, as indicated by “#AmExAmbassador” and other, related hashtags. These are the types of posts that were focal points for the following rankings list.

In order to give you the most accurate and complete view of the landscape of influencers’ activities in connection with the existing truth in advertising laws, we – with the input from an array of lawyers working within the advertising and social media sphere – have construed the FTC’s Guidelines rather strictly.

For instance, given the FTC’s stance on posts accompanied by hashtags, such as “Partner,” “Ambassador,” “Collab,” and “Influencer” – namely, that they are not likely to be deemed as clear or conspicuous as “Ad,” “Sponsored,” or “Paid for” – they have been characterized for the purposes of this ranking as invalid disclosures. This same narrow reading of the law is taken in connection with disclosures, such as “#ad,” that are included in between a number of other hashtags or account handles (all of which are the same color and letter case). Including #ad or #sponsored in a caption directly next to a number of hashtags – regardless of the order if its placement – also likely does not amount to “clear and prominent” placement, as required by the FTC.

In addition, including “ad,” “sponsored” or other disclosure-type language at the end of a lengthy caption, thereby requiring followers to scroll down (on mobile and desktop) to learn of the disclosure, is likely in violation of the FTC tenant that viewers “should not have to look for [the disclosure].” Such disclosures are deemed as invalid in accordance with this ranking.

In accordance with the FTC’s holding that disclosures must be “in clear and unambiguous language; as close as possible to the native ads to which they relate; in a font and color that’s easy to read; [and in a shade that stands out against the background,” we have treated the tacking of #ad – or other disclosure terms – on to the beginning, end or in the middle of another hashtag (such as in the case of #Lorealleaguead or #sponsoredbyyslbeaute) as an invalid disclosure.

It is also worth noting that while the FTC is a U.S.-specific law, it applies to all entities operating in commerce in the U.S. Moreover, similar laws exist in other nations. In the U.K., for instance, the Advertising Standards Authority is beginning to clamp down on ethically questionable and oftentimes misleading advertising practices. This is why non-American-based influencers are, in fact, included.

Finally, influencers that have used proper disclosures in some posts – such as properly placed disclosures or properly worded disclosures, such as #ad or #sponsored – but not others, were judged more harshly, as the sporadic utilization of proper disclosures, particularly for a select few brands, seems to suggest that these individuals are, in fact, aware of the difference between appropriate and inappropriate disclosures and yet, have opted to disclose improperly in many cases.

The Rankings: September to November 2016

I. BLOGGERS/INFLUENCERS

In addition to the main hierarchy (Exemplary, Above Average, Average/Below Average, and Least Commendable) the listing of bloggers/influencers within each of the subcategories is ranked from most abiding (#1 within each category) to the least abiding; it is here that individual follower counts are taken into account.

A. EXEMPLARY

from left: Bryan Boy, Rumi Neely, and Jessica Stein

These individuals/accounts boasted either the highest rate of properly disclosed sponsored posts or the lowest rate of improperly disclosed sponsored posts, namely, less than 15 instances of undisclosed/improperly disclosed posts. Their individual follower counts and the number of posts published during the time period were factored into their ranking within this group. Moreover, additional indications, such as the declaration of gifts and the clear specification of their connections to their own companies, were similarly taken into account.

1. Bryan Boy (607k) – With very few – if any – improperly disclosed sponsored posts, Bryan Boy is the most exemplary influencer in terms of abiding by the FTC’s guidelines. In addition to clearly educating himself about the FTC’s guidelines – as evidenced by his consistent usage of proper disclosure language, such #ad and #sponsored – Bryan even clearly discloses when items included in his posts are gifts, as opposed to items he has purchased.

In addition to an impeccable track record during the quarter at hand, it is worth noting that Bryan is the only influencer on this list to include the appropriate sponsorship language in connection with content sponsored by American Express. This is particularly significant, as all of the other influencers on this list that posted content sponsored by American Express – some individuals posted anywhere between 10 and 20 American Express posts, respectively, during the time period at issue – did so without including proper disclosures.

image: @bryaboy instagram

2. Rumi Neely/Fashion Toast(706k) – Rumi Neely does not post a significant amount of sponsored posts, which is a rarity among influencers, and as a result, she ranks highly, at least in part, because she simply does not post improperly disclosed or undisclosed sponsored content.

More substantially, however, Neely occupies a particularly favorable position on this list due to her clear indication of the connection she maintains with her own collection. Given the rise of blogger/influencer-founded/fronted collections, it is imperative that these individuals make their connections with such brands clear for their viewers, especially when such connections would not otherwise be terribly obvious.

Considering that Neely’s collection, “Are You Am I,” does not make use of her personal name or the name of her blog, Fashion Toast, it would almost certainly not be obvious to viewers that she is, in fact, the founder of the brand. As a result, any promotion by her of the brand without the appropriate disclosure language would likely be deemed to be in violation of the FTC’s guidelines.

Neely scores highly here as she thoroughly and unambiguously indicates to viewers – by way of her bio line – that she is the creative director/owner of the “Are You Am I” collection, which she promotes on her account. A number of other individuals fail to clearly distinguish their connections with their own brands’ offerings, giving Neely a clear advantage in this sense.

Note: While an influencer/blogger’s connection with a certain brand (by way of an ambassadorship, advisor, consultant, or ownership role) may be obvious to some – or even many – only a “significant minority” of consumers needs to be misled as to whether the parties have a connection and what the extent of that connection is for a disclosure to be deemed misleading and invalid in accordance with the FTC guidelines.

Stein’s merit more squarely centers, though, on her policy of not accepting gifts. The promotion of gifts without disclosing their nature, a common foul among brands and bloggers/influencers, is not explored in depth in this ranking. Stein, nonetheless, received points for her stance on gifting, and more directly, the absence of the promotion of “gifted” products on her account without the proper disclosure to accompany such products.

B. ABOVE AVERAGE

from left: Arielle Charnas, Marianna Hewitt, and Shea Marie

These individuals/accounts occupy an above-median space. This means that the rate of properly disclosed sponsored posts either trumped or was closely mirrored the number of undisclosed/improperly disclosed posts. Many of the individuals within this category could benefit from clearer disclosures, as distinct from “#AmexAmbassador,” “#LaMerInfluencer,” “#LancomeSponsored,” “SWCollab,” and/or “#PartneredwithLOrealParis.”

1. Arielle Charnas/Something Navy (935k) – Arielle Charnas was found to be above average as more than 50% of her sponsored posts were accompanied by proper disclosure statements, such as prominently placed “ad” hashtags. Keeping her from the top spots? The use of improper disclosures, such as "#spon" and the placement of proper disclosure language, such as "ad" and "sponsored," between many other hashtags.

image: @somethingnavy instagram

2. Marianna Hewitt/Life with Me(655k) – Ms. Hewitt ranks relatively highly, as she clearly included disclosures for a large number of brands, including European Wax, Goop, Swarovski, Optic White, Essie, Burberry, Aquatalia, Air Optix colors, Kenneth Cole, Viktor & Rolf, Armani, and Botkier, among others. Given her 10+ undisclosed American Express posts (Note: #AmExAmbassador is not a proper disclosure), she falls below the top spot.

image: @marianna_hewitt instagram

3. Wendy Nguyen/Wendy’s Lookbook (1M) – Wendy Nguyen also secured a notably positive position, as she discloses just less than half of her sponsored posts, which amounts to a frequency that is much greater than the average influencer. Having said that, Nguyen does not earn higher placement due to an array of improper disclosures, such as “#lorealleaguepartner” and “#LancomeSponsored,” and placing “sponsored” at the end of a very long caption.

image: @wendyslookbook instagram

4. Chriselle Lim/The Chriselle Factor (722k) – Ms. Lim also disclosed quite a bit more frequently than some similarly situated individuals. For instance, she prominently placed “#ad” in posts for HP, Hallmark, H&M, Fendi, Petco, Lexus, and Burberry. While the vast majority of her sponsored posts are, in fact, accompanied by proper disclosure language, some of the indicating hashtags were placed among others making them difficult to spot.

image: @chrisellelim instagram

5. Shea Marie/Peace Love Shea (1M) – Shea Marie occupies a slightly above average position on this list, as while she maintains a number of improperly disclosed sponsored posts, the number is certainly not as great as most other influencers.

Moreover, she includes a note regarding her connection with Same Swim, the swimwear brand she launched in 2015, in her Instagram bio. It is unclear from the bio whether she owns the collection (it simply states that she is the “creative director”); if this is the case, this is a fact that would arguably be worth adding for complete/accurate disclosure regarding her involvement with the brand.

image: @peaceloveshea instagram

C. AVERAGE/BELOW AVERAGE

from left: Aimee Song, Danielle Bernstein, and Kristina Bazan

These individuals/accounts occupy a below-average space. This means that the rate of undisclosed/improperly disclosed posts outweighs those that were properly disclosed.

1. Nicole Warne/Gary Pepper Girl (1.7M) – Nicole Warne ranks most highly within this category, as while she does not tend to properly disclose many of her sponsored posts, there are not too many (less than 15) to disadvantage her too significantly. Given that most influencers fail to disclose more than 50% of their posts either properly or at all, Warne, who has disclosed some of her posts, including those for Net-a-Porter, is representative of an “average” blogger/influencer.

image: @garypepper instagram

2. Aimee Song/Song of Style (4.1M) – The $500k+ deal that Aimee Song signed with cosmetics brand Laura Mercier – and the undisclosed sponsored posts that resulted from it – is what first inspired our FTC series. Since then, Song has improved her disclosure practices quite a bit. She maintains an “average” positon on this ranking, as no small number of sponsored posts – including ones tied to Mercier – are still posted without proper disclosures.

She has included proper “#ad” disclosure in posts for Nordstrom, Rag & Bone, Schutz, Ash, Kenzo, Michael Kors, and some Laura Mercier posts, but failed to adequately disclose more than half of the posts promoting companies with which she has/had a material connection, including Citizen L watches, Lexus, La Prairie, and Jimmy Choo, among others. Given the size of Song’s following, the repeated failure to properly disclose is particularly problematic.

image: @songofstyle instagram

3. ManRepeller (1.6M) – The ManRepeller – as distinct from founder Leandra Medine’s personal Instagram account, which was not taken into account here – ranks in a below average spot. While its operators have very clearly disclosed a couple of Chanel-sponsored posts, the vast majority of its sponsored posts bear an “#MRPartner” disclosure, which is - in our opinion - a potentially invalid disclosure. While the FTC's Associate Director Mary K. Engle has stated in the past that stating that a company is a “partner ... probably is" a valid disclosure, adding "MR" in front of it may affect its level of clarity.

Moreover, considering the aforementioned Chanel posts that bear a “sponsored” hashtag, that seems to give rise to two problematic elements. First, it may lead viewers to believe that only posts that bear the actual “#Sponsored” disclosure – as distinct from those that bear the “#MRPartner” disclosure – are sponsored. Secondly, the existence of the “#sponsored” disclosure in addition to the “#MRPartner” one might suggest that “#MRPartner” alone is not enough.

image: @manrepeller instagram

4. Julia Engel/Gal Meet Glam (1M) – Ms. Engel ranks at the lower end of the category, largely thanks to her failure to disclose upwards of 15 or so American Express-affiliated posts. While she includes the “#AmExAmbassador” hashtag, this is not an effective disclosure. She similarly failed to provide proper disclosure – usually by placing “#ad” among other hashtags or failing to include any disclosure language at all – for a rather significant number of other posts, including ones for Old Navy, Shopstyle, Express, Lens Crafters/Macy's, Michael Kors/Macy’s, and Tresemme, among others.

image: @juliahengel instagram

5. Rocky Barnes (870k) – Rocky Barnes lands in the middle of this category thanks to her undisclosed affiliations with American Express and Grey Goose, in particular. She posted upwards of 15 posts dedicated to these two companies without any form of disclosure at all. Other companies that were subject to undisclosed and/or improperly disclosed posts include Abercrombie, Larsson Jennings, Schutz Shoes, MCM, and Moet.

image: @rocky_barnes instagram

6. Danielle Bernstein/We Wore What (1.5M) – In addition to an array of undisclosed sponsored posts from companies with which Danielle Bernstein and We Wore What do not maintain particularly close or ownership-type connections (such as Velocity, Lexus, Mavi, and SKII, among others), Bernstein maintains a below average position largely due to the large number of postings about Second Skin overalls and Archive Stores.

While Ms. Bernstein is, in fact, promoting her own ventures in posting about Archive Shoes and Second Skin overalls – she is the founder of both companies – this is almost certainly not clear to the average reader or viewer in most of the posts about the companies. (Note: Some do include proper identifications but they are in the minority).

This is especially true, as her Instagram bio line does not specify her role in connection with the two companies. Her bio merely states: “Overalls are my second skin ☆ Archiveshoes.com” which certainly does not indicate that she has any material connection with either of the companies.

image: @weworewhat instagram

7. Blaire Eadie/Atlantic-Pacific (949k) – Blaire Eadie ranks poorly due to the sheer number of improperly disclosed posts she boasted during the period at issue paired with the rather sizable reach of her Instagram presence. Posts dedicated to Larsson Jennings, J. McLaughlin, Schutz Shoes, American Express, Ugg, Tory Burch, Sezanne, and Ann Taylor, among others were improperly disclosed, largely due to the placement of “#ad” in between many other hashtags, thereby serving to hide from viewers.

image: @blaireadiebee instagram

8. Kristina Bazan/Kayture (2.4M) – Los Angeles-based blogger/influencer Kristina Bazan occupies a below average placement due to the large number of undisclosed and/or improperly disclosed posts during the period at issue. Paired with her expansive following, such repeated failures to abide by FTC guidelines – in connection with brands, such as Clarkes, Benetton, Seezona, L'Oreal, Park Hyatt, Etam, and Michael Kors – is damaging to consumers.

A point worth addressing in connection with Bazan is that thanking a specific brand by way of ambiguous language has not been deemed acceptable per the FTC’s guidelines. For instance, Bazan’s #ThanksMK, used repeatedly in Bazan’s posts, is almost certainly not a valid indication that a post is sponsored by and/or affiliated with Michael Kors; there is nothing “clear” about that disclosure.

image: @kristinabazan instagram

D. LEAST COMMENDABLE

from left: Chiara Ferragni, Olivia Palermo and Julie Sariñana

These individuals occupy the lowest tier due to very low levels of properly disclosed sponsored posts and the highest rate of improperly disclosed sponsored posts. Their individual follower counts and the number posts they published during the time period were taken into account.

1. Julie Sariñana/Sincerely Jules (4.1M) – Julie Sariñana ranks so poorly due to the presence of an array of undisclosed (not improperly disclosed, but entirely undisclosed) posts, including some in connection with Cluse watches, Chasing Paper, Karl Lagerfeld, and Paige denim, among others.

Sariñana, who boasts a truly significant number of followers, nonetheless, managed to land at the top of the ‘Least Commendable’ placement in the category due to her very clear labeling of her own label, which is “Shop Sincerely Jules.” It is obvious to followers that she is affiliated with that brand, which is not necessarily always the case with influencers, particularly those that opt to call their collections something that does not include their own names and then fail to disclosure their affiliation. In this way, Sariñana is not misleading consumers.

image: @sincerelyjules instagram

2. Olivia Palermo (4.3M) – This famous influencer is one of the most egregious inclusions on our ranking, as none of her numerous sponsored posts were disclosed as such. She ranks slightly more favorably than Chiara Ferragni due to her less expansive following (4.3 million followers) in comparison to Ferragni, who boasts 7.3 million followers, and a smaller number of posts.

image: @oliviapalermo instagram

3. Chiara Ferragni/The Blonde Salad (7.4M) – The industry’s most profitable/well-known blogger/influencer takes the spot of the individual who most frequently fails to abide by the FTC’s guidelines. Of the 100+ sponsored posts that Los Angeles-based Ferragni posted in the three-month period at issue, just 2 were properly disclosed putting her percentage of properly disclosed posts at lower than 2%.

II. NOTED BLOGGERS/INFLUENCERS WHO WERE NOT INCLUDED

In order to provide as concise a list as possible, we opted to include only the most relevant bloggers/influencers. This list is in no way inclusive of all of the bloggers/influencers that are and are not abiding by the FTC guidelines. In fact, Gala Gonzalez, Natalie Suarez, Dylana Suarez, Louise Roe, Sara Escudero and Diego Anciano of Collage Vintage, and Olivia Culpo all stood out as individuals that are largely failing to abide by the FTC’s guidelines.

image: @natalieoffduty instagram

III. BRANDS

Due to the number of brands whose practices fall outside of the FTC’s guidelines on proper disclosure, and the FTC’s continued emphasis that it is the duty of advertisers to ensure that influencers are properly disclosing paid-for (or otherwise compensated) posts, they have been categorized, as well. Unlike the bloggers/influencers list, the brands at issue are simply categorized according to the main hierarchy (Exemplary, Above Average, Average/Below Average, and Least Commendable), and the listing within each of the subcategories is random, and not ranked according to the most abiding.

These brands/companies rank highly in that the vast majority of their postings by bloggers/influencers were properly disclosed, save for some exceptions, which took the form of improperly placed (and thereby, obstructed) disclosures.

These brands/companies are the ones that enabled bloggers/influencers to utilize potentially improper disclosure language such as, “#RMPartner” for Rebecca Minkoff, “#SWCollab” for Stuart Weitzman, and “ThanksCK” for Calvin Klein.

These brands/companies rank extremely poorly in terms of disclosures; they seem to either fail to educate influencers regarding the need to disclose and/or fail to monitor such postings. Save for one blogger/influencer, Bryan Boy, absolutely none of American Express’s posts are disclosed. Jimmy Choo had bloggers tag (presumably paid-for) travel photos with #ChooTravels, yet all lacked appropriate disclosure in connection therewith. Lastly, hotels, such as Park Hyatt and Leading Hotels of the World, among others, are particularly gross examples of non-disclosing entities in connection with bloggers/influencers.

IV. FTC DISCLOSURE GUIDES

You may find detailed rules on how to abide by the FTC’s various guides here, and for a simple ‘How To Guide,’ please visit The Fashion Law. Given the FTC’s increased attention in this area, and its authority to take legal action, including disgorging all profits associated with improperly disclosed sponsored posts, it is essential that brands/companies and bloggers/influencers, alike, become familiar with and abide by the FTC’s mandates in advertising.

* Stay tuned for our second report, which will be published in January 2018.